After a divorce is final, the parties are bound to the terms of the final orders. If one party fails to honor the order, the other party may file a motion to enforce the order as written.
“A judgment of dissolution or of legal separation or of declaration of invalidity of marriage may be enforced…by order of court pursuant to petition…Any judgment entered within this State may be enforced…in the judicial circuit wherein such judgment was entered or last modified by the filing of a petition with notice mailed to the respondent at his last known address, or by the issuance of summons to the respondent.” 750 ILCS 5/511
Frequently, the party seeking to enforce an order also would not mind a few changes to the order to ensure future compliance.
Any additional request beyond pure enforcement transforms the motion to enforce into a motion to modify…which are much harder for the court to grant.
The Difference Between A Motion To Enforce And A Motion To Modify In An Illinois Divorce
A motion to enforce is when a party is seeking to enforce a judgment when that party “requests a determination of the parties’ rights and obligations with respect to the terms” of the judgment (In re Marriage of Figliulo, 2015 IL App (1st) 140290, ¶ 12) or “is attempting to enforce the parties’ rights and obligations” that are “clearly laid out in the marital settlement agreement and judgment of dissolution” ((Internal quotation marks omitted.) In re Marriage of O’Malley ex rel. Godfrey, 2016 IL App (1st) 151118, ¶ 44 (quoting In re Marriage of Hall, 404 Ill. App. 3d at 165))
A motion to modify, in contrast, is “seeking to impose new or different obligations on the parties.” In re Marriage of O’Malley, 2016 IL App (1st) 151118
An Illinois court will look to the substance of a motion not to its caption or title.
“[T]he caption of a motion is not controlling; the character of the pleading is determined from its content, not its label.” Sarkissian v. Chicago Bd. of Educ., 776 NE 2d 195 – Ill: Supreme Court 2002
Therefore, despite the title of a motion, a court must analyze what the motion is truly asking for in order to determine whether the court can grant that relief.
“In order to determine whether [a] petitioner…sought to enforce the dissolution judgment, we look to its terms.” In re Marriage of Figliulo, 2015 IL App (1st) 140290, ¶ 12
The language of the order determines whether a party is trying to enforce the order or modify the order.
For example, In re Marriage of Hall, 404 Ill. App. 3d at 166 , the court found that “petitioner is not seeking to impose new or different obligations on the parties. Rather, she is attempting to enforce the parties’ rights and obligations with respect to respondent’s retirement plans, which were clearly laid out in the marital settlement agreement and judgment of dissolution.”
Some amendments (especially to collateral documents associated with the original order such as a QDRO or a QILDRO) are just enforcement of the original order.
“This change did not impose new or different obligations on the parties. The rights and obligations of the parties vested when the judgment became final. The amendment to the QDRO was necessary to enforce the petitioner’s rights and obligations with respect to the pension. Since the amended order only enforced the provisions of the judgment, the court had jurisdiction to make the modifications.” In re Marriage of Allen, 343 Ill. App. 3d 410, 413 (2003)
More likely than not, any request for a change, amendment or even a tweak to the original text in the order being enforced will constitute a modification…which the court cannot grant without passing additional statutory hurdles.
What If A Motion To Enforce Is Deemed a Motion To Modify?
If a court determines that the motion to enforce is a motion to modify in sheep’s clothing then the motion most likely will have to amended to include appropriate allegations as required in a motion to modify.
If parenting time is effectively being modified, allegations must be made that a substantial change in circumstances has occurred AND that the proposed modification would be in the child’s best interests.
“Except in a case concerning the modification of any restriction of parental responsibilities under Section 603.10, the court shall modify a parenting plan or allocation judgment when necessary to serve the child’s best interests if the court finds, by a preponderance of the evidence, that on the basis of facts that have arisen since the entry of the existing parenting plan or allocation judgment or were not anticipated therein, a substantial change has occurred in the circumstances of the child or of either parent and that a modification is necessary to serve the child’s best interests.” 750 ILCS 5/610.5. (Emphasis added).
Parental decision-making modifications are even stricter requiring a 2 year wait since the last order or that there be an extremely negative environment under the current order.
“[N]o motion to modify an order allocating parental decision-making responsibilities, not including parenting time, may be made earlier than 2 years after its date, unless the court permits it to be made on the basis of affidavits that there is reason to believe the child’s present environment may endanger seriously his or her mental, moral, or physical health or significantly impair the child’s emotional development.” 750 ILCS 5/610.5(a)
Child support modifications also require certain thresholds to be proven.
“An order for child support may be modified as follows:
(1) upon a showing of a substantial change in circumstances; and
(2) without the necessity of showing a substantial change in circumstances, as follows:(A) upon a showing of an inconsistency of at least 20%, but no less than $10 per month, between the amount of the existing order and the amount of child support that results from application of the guidelines specified in Section 505 of this Act unless the inconsistency is due to the fact that the amount of the existing order resulted from a deviation from the guideline amount and there has not been a change in the circumstances that resulted in that deviation; or(B) upon a showing of a need to provide for the health care needs of the child under the order through health insurance or other means. In no event shall the eligibility for or receipt of medical assistance be considered to meet the need to provide for the child’s health care needs.” 750 ILCS 5/510(a)
Likewise, maintenance (formerly known as alimony) can only be modified after a showing of a substantial change in circumstances.
“An order for maintenance may be modified or terminated only upon a showing of a substantial change in circumstances.” 750 ILCS 5/510(a-5)
Additional required allegations and proofs may be cumbersome for modification parenting and support issues. Property division, however, is not modifiable at all.
“Property provisions of an agreement are never modifiable.” 750 ILCS 5/502(f)
Once a motion to enforce a property settlement pursuant to a divorce decree is determined to be a motion to modify that property settlement, the court is powerless to take any action.
“Property rights created in a divorce decree become vested after 30 days, and the trial court lacks jurisdiction to modify an order affecting those rights.” In re Marriage of Kekstadt, 85 Ill. App. 3d 952, 956 (Ill. App. Ct. 1980)
Motions to enforce are practically indefensible. You must do what you agreed to do.
Motions to modify, however, have numerous defenses.
So, every motion to enforce should be examined for the possibility that it is really a rebuttable motion to modify. As Shakespeare said ,“a rose by any other name would smell as sweet.”
Finally, a motion is either requesting modification or enforcement. A motion cannot request both. You either want to enforce an agreement/order or you want to modify that agreement/order.
“The doctrine of election of remedies is applicable only where a party has elected inconsistent remedies for the same injury or cause of action. The prosecution of one remedial right to judgment or decree constitutes an election barring subsequent prosecution of inconsistent remedial rights. For instance, a remedy based on the affirmance of a contract ( e.g., damages) is generally inconsistent with one based on the disaffirmance of the contract ( e.g., rescission). Thus, the election of either remedy is an abandonment of the other.” Lempa v. Finkel, 278 Ill. App. 3d 417, 424 (Ill. App. Ct. 1996)
“While a plaintiff may pursue a remedy at law for damages and alternatively seek specific performance of the contract, plaintiff cannot have it both ways. Plaintiff cannot affirm the contract, obtain specific performance and, in essence, erase the breach, yet also seek damages at law for breach of contract.” Douglas Theater Corp. v. Chicago Title & Trust Co., 288 Ill. App. 3d 880, 886-87 (1997)
To learn more about defending against motions in an Illinois divorce court, contact my Chicago, Illinois family law firm to speak with an experienced Illinois divorce attorney.
